0120065107
05-29-2008
Judith E. Lucas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judith E. Lucas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200651071
Agency No. 1F-957-0059-05
Hearing No. 550-06-00079X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 9, 2006 final order concerning her equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. Complainant alleged that the
agency discriminated against her on the bases of race (African-American)
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when from June 15 to September 7, 2005, she
was subjected to harassment and a hostile environment.
Following an investigation by the agency, complainant requested a
hearing before an EEOC Administrative Judge (AJ). The AJ assigned to
the case issued a decision without a hearing finding no discrimination.
The AJ incorporated into his decision elements of the agency's Motion
for Summary Judgment. The AJ found that complainant, a General Clerk,
at the Sacramento Processing & Distribution Center, failed to show that
she had been subjected to harassment/hostile work environment. The AJ
indicated that an investigation of her claims failed to substantiate her
allegations of harassment, and indicated that complainant had difficulty
accepting direction and was otherwise "hyper-sensitive" to receiving
instructions from her immediate supervisor, an African American female.
Moreover, the AJ found that complainant offered no evidence, and the
record contained no evidence, indicating that she was aggrieved or
that she otherwise suffered a tangible employment action as a result of
any observations and exchanges that she asserted and found offensive.
The record shows that the incidents complained of by complainant were
primarily related to issues of leave and requests for documentation for
that leave. The issues also involved the manner in which complainant
was to do her job and duties that were taken away from her that had
formerly been assigned to her.
The AJ also determined that complainant provided no evidence which
indicated that she was treated less favorably than similarly situated
employees not of her protected bases in similar circumstances. He found
that complainant failed to show that race and prior EEO activity were
factors in this case. The AJ indicated that she provided no evidence or
explanation regarding her contentions that her supervisors were acting
in a bizarre manner towards her. Finally, the AJ found that the record
reflected that complainant was a difficult employee to manage and she
had stated to management that she intended to "perform her duties in
a manner to her liking even if it is contrary to her assigned duties
and instructions." Therefore, the AJ determined that complainant failed
to show that she was subjected to harassment because the incidents she
complained of were not severe or pervasive enough. The AJ noted that
the EEO process was not the place to enforce general civility codes.
The standard of review in rendering this appellate decision is de
novo, i.e., the Commission will examine the record and review the
documents, statements, and testimony of record, including any timely
and relevant submissions of the parties, and issue its decision based
on the Commission's own assessment of the record and its interpretation
of the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without
a hearing on this record. The Commission's regulations allow an AJ to
issue a decision without a hearing when s/he finds that there are no
genuine issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003). We find that
the AJ's determination to issue a decision without a hearing (summary
judgment) was appropriate.
On appeal, complainant contends that upper-management gave her supervisor
permission to harass her. She maintains that she continues to experience
harassment. She also indicates that the agency is attempting to renege
on a settlement agreement.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
First of all, we agree that there are no material issues of fact in
dispute therefore, the Administrative Judge's issuance of a decision
without a hearing was appropriate. Next, we agree that complainant has
not shown and the record does not support that she was subjected to a
hostile work environment. The conduct described by complainant is not
sufficiently severe or pervasive to alter the terms and conditions of
her employment. The record shows that the agency's actions were based
upon complainant's conduct and performance, not her race. Further, with
respect to allegation of retaliation, we find that only complainant's
immediate supervisor was aware of her prior EEO activity which occurred in
1998 and 2000. Upper-level managers however, were unaware of complainant's
prior EEO activity. We find that the prior EEO activity was too remote
in time to establish the necessary nexus between the conduct complained
of and the prior EEO activity. Finally, with respect to complainant's
contentions on appeal, that she continues to be harassed by her supervisor
and the agency is not abiding by a settlement agreement, we advise her
to return to the EEO office to address these matters. Additionally,
we find that there is no evidence in the file and complainant did not
present any evidence which demonstrates that upper-level supervisors
encouraged complainant's supervisor to harass complainant. Accordingly,
the agency's final order is hereby affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time in
which to file a civil action. Both the request and the civil action must
be filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____05-29-08_____________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120065107
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065107